Complicity Purpose (Dual) Solicits, aids or agrees or attempts to aid; or fails to prevent + duty

Murder Purpose, knowledge, extreme reck.

Causes death

Manslaughter Recklessly or,

Murder, but EED

Causes death

Neg. Hom. Negligently Causes death

EED1. Was Defendant under EED? (Subjective)2.Was there a reasonable explanation or excuse for EED?

(Objective and subjective)

Necessity: 1. Belief that conduct is necessary to avoid a greater harm

(Subjective) 2. Weighing of evils - Harm or evil avoided is greater than that

sought to be prevented. 3. Legislature has not precluded defense. 4. Multi-tiered approach to blame issue. (Could support finding

of negligent homicide)

+ Facts & Inferences (Pros)

+ Facts & Inferences (Defense)

Began to plan on 18th day, 2 days in advance (purposeful, planned act)

Brooks dissented (necessity?)

Dudley committed the act of killing

Prayers offered (again shows purposeful, planned act)

Extreme conditions/for both EED & Necessity (Had no supply of water & no supply of food in rescue boat, Subsisted for 3 days on 1 lb of turnips, Caught a turtle on 4th day, up to 20th day)

Plan made on 18th day, when had gone 7 days w/o food & 5 w/o water.

(Pros) (Defense)

Stephens & Dudley went to Parker & told him that time had come

Parker did not consent; did not threaten others

Did not draw lots

Dudley kept knife & no remorse

Death was probable - not certain

Lifeboats not adequately stocked (negligent/reckless?)

1000 mi. from land

Parker most likely to die & men would have died soon w/o eating

No rescue in sight

Fortuity of rescue (mermaids)

Parker’s family has forgiven men

Public sympathy

3 lives saved w/ 1 death

Honest belief shown by conduct

Negotiation Results Man.

Man.

No Settlement

Minimum Sentence 5 yrs:– Will serve one yr, with 4 yrs

suspended (possibility of having sentence commuted)

5 Yrs. Deferred.

Negotiation Results

Man.

Man.

No Settlement

5 Yrs probation

5 yr. Suspended Sentence

Negotiation Results

Man.

Neg. Hom.

7 Yr. Suspended Sentence

6 months in jail with intensive psych. Counseling, 6 months probation with monthly psych evaluations.

Common Law MPC

Clear & Imminent Danger (examine alternatives)

------------

Reasonable belief actions will abate danger

Honest Belief

Maj: Judge weighs evils ?

Legislature has not precluded defense

Same

Without blame Reck. = Reck. MR

Neg. = Neg. MR

Maj: Not for homicide All crimes

Maj: Forces of Nature ---------------

Justification v. Excuse

Justification: Society deems that the defendant made the right choice and did the right thing under the circumstances of the case.

Excuse: Society does not condone the defendant’s conduct, but rather excuses it on the basis that he or she can not be held responsible for the conduct.

Toscano (p. 845)

Use or threat of harm to you or another Present, imminent & pending Induce a well-grounded apprehension of

death or serious bodily harm (used to be just death) to a man of ordinary fortitude and courage

Not Reckless

Duress Defense Whether the standard of reasonableness is

subjective or objective. Source of the threat. Whether the threat should be imminent. Whether the defense should be excluded for

certain types of crimes (e.g. homicide). Whether particular types of threats are required. Whether the defendant should be free from fault.

Duress Defense Whether the standard of

reasonableness is subjective or objective.– Common Law: Reasonable fortitude

– MPC: Reasonable firmness

Duress Defense Source of the threat.

– Most jurisdictions require that the source of the threat be another person.

Duress Defense Whether the threat should be

imminent.– Common Law: Present, imminent &

Pending

– MPC: ------------------

Duress Defense Whether the defense should be

excluded for certain types of crimes.– Common Law: Homicide (including

felony murder?)

– MPC: -------------------

Duress Defense Whether particular types of threats are

required.– Common Law: Death or serious bodily

harm.

– MPC: Unlawful force.

Duress Defense Whether the defendant should be free

from fault.– Common Law: Yes

– MPC: Sort of.• Reckless: Defense is barred.• Negligence: Negligence Mens Rea

Definitions

Competency:– Person, as a result of a mental disease or defect

lacks capacity to understand the proceedings against him/her or to assist in defense.

Execution:– Ford v. Wainwright (1986): bar on execution of

insane.– Atkins v. Virginia (2002): bar on execution of

the mentally retarded.

M’Naghten (p. 879)

Defect of reason or defect of mind; and– Did not know the nature of the act, or– Knowing the nature of the act, did not know

that it was wrong.

Problems with test:– Complete impairment– Restriction to impairment of cognition– Artificial restriction on expert testimony